Wednesday, February 21, 2018

Justice Thomas decries Supreme Court's refusal to hear 2d Amendment case

The Second Amendment is front and center these days, as each mass shooting ignites further debate about the rights of gun owners and how society can stop the carnage. Yet, we forget that the Supreme Court only 10 years ago ruled for the first time that the Second Amendment protects individual right to gun ownership. Over the lone objection of Clarence Thomas, the Supreme Court this week decided not to take up another gun case. 

The case is Silvester v. Becerra. Justice Thomas' dissent from the denial of certiorari came down on February 20. The case originates in California, which requires gun buyers to wait 10 days before they can bring the gun home. The trial court said this waiting period violates the Second Amendment because it was not reasonably tailored to promote an important government interest. We call that "intermediate scrutiny," an evidentiary model that helps courts to evaluate the constitutionality of legislative provisions. The trial court said in part that the cooling off period does not cut it because it assumes the gun purchaser has no guns at home and therefore cannot commit an impulsive act with a gun already in his possession. But the Ninth Circuit reversed and struck down the 10-day waiting period because the California law prevents gun violence by creating a cooling-off period. The Ninth Circuit also said that while the research did not isolate the effect of waiting periods on subsequent purchasers, those students "confirm the common sense understanding" that cooling-off periods deter violence and self-harm, and understanding that "is no less true" for subsequent purchasers.

The Supreme Court declines to hear the case. That is no surprise. The Court receives about 7,000 requests per year, and it only takes on about 80-90 cases. But the Court has not been taking Second Amendment cases. We hear much about the Second Amendment these days, but the Court decided the seminal Heller case in 2008, ruling for the first time that the Second Amendment confers an individual gun right.

In his lone dissent from the Court's decision not to hear the case, Justice Thomas accuses the Court of ignoring the Second Amendment and instead favoring claims involving free speech, abortion and Fourth Amendment searches and seizures. All the while, the lower courts are struggling to apply Heller without Supreme Court guidance. It seems clear that Thomas thinks the California law is faulty and that the Ninth Circuit did not sufficiently defer to the trial court's factual findings. But his harshest words are for the other Justices, including the conservatives who usually vote with Thomas. He also criticizes the lower federal courts, which "are failing to protect the Second Amendment to the same extent that they protect other constitutional rights."

If this case involved one of the Court’s more favored rights, I sincerely doubt we would have denied certiorari.I suspect that four Members of this Court would vote to review a 10-day waiting period for abortions, notwithstanding a State’s purported interest in creating a “cooling off ” period. I also suspect that four Members of this Court would vote to review a 10-day waiting period on the publication of racist speech, notwithstanding a State’s purported interest in giving the speaker time to calm down. Similarly, four Members of this Court would vote to review even a 10 minute delay of a traffic stop. The Court would take these cases because abortion, speech, and the Fourth Amendment are three of its favored rights. The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message.

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